Thursday, February 9, 2012

Alex Ness: I asked several creative talents in the comic book medium: With regards to the recent events in the Ghost Rider/Gary Friedrich versus Marvel court cases, is Gary Friedrich being treated fairly, and if not why not? (Find links to the events HERE

You know, these cases are coming into public view because Marvel has, over the decades, refused any and all rational discussion or negotiations regarding the properties. They refused living creators, like Gary Friedrich; they refused now-deceased creators, leaving it to their respective heirs to battle. So, now, decades later, it comes to a head—and the absolutely pro-corporate early 21st Century American legal landscape enforces absurd scenarios involving lack of contracts, lost contracts, dubious "back of check contracts," etc. as "evidence" of corporate ownership and the law of the land.

The problem is impossible to summarize succinctly. Why didn't these creators have agents, lawyers? Well, the fact is (and I entered the industry in 1976-77, when this was true), there was only ONE agent tolerated by the comics publishers in the 1970s (ironically, Mike Friedrich, by name); creators who dared mention either an agent or a lawyer were simply denied work or had doors closed on them. Why didn't these creators resolve these differences sooner? First of all, the Marvel of 1961 was no longer the Marvel of 1969, after Martin Goodman sold Marvel—which was no longer the Marvel of James Galton, or of Jim Shooter, or that was bought by New World, or that was fought over by Perlman/Icahn; etc. Secondly, the Copyright Act of 1976 changed the landscape—requiring contracts for the first time, for an industry that (let's face it) found retailers fighting CASH REGISTERS, bar codes, and basic accounting practices in the 1980s, and the publishers fought tooth-and-nail to make the altered "work-for-hire" definition fit their ramshackle, improvised manner of doing business with freelancers. Marvel rarely represented anything vaguely resembling "progressive" policies (even their much-feted royalty plan of the mid-1980s was a response to DC Comics instituting royalties for creators first, and don't even get me going on return of artwork policies). In fact, many creators did try to deal with these legal matters—and every case history is different, none evidencing anything except the inevitable Bataan Death March to where we see these creators now, losing legal battles long coming.

The bottom line is only two things may, in time, alter the course of history:(1) The creative community—and by that, I include the motion picture industry, including screenwriters, actors, directors, technicians, etc.—joins forces to somehow redress the gross imbalance of power, or:

(2) Utter capitulation, resulting in a new generation realizing (a) there's absolutely no reason to bring anything of any creative or legal value to firms like Marvel/Disney, and (b) there's absolutely no reason to believe in a nanosecond in the corporate product espousing "heroes" fighting against enormous odds for "justice" or "right," since the behavior of the corporate proprietors themselves so transparently demonstrate how meaningless those fictions are.

(1) could begin, for instance, with, say, the star of the GHOST RIDER movies publicly donating $17,000 to the creator of a comicbook character he claims to "love." If the star wouldn't take such action, perhaps a co-star, or the screenwriter, or the director, or a collective of grips, or, hell, ANYONE with HALF the backbone fictional characters like Ghost Rider pretend to embody could take such public action.

The Actor's Guild and Writer's Guild strike when conditions become intolerable for their members. Well, Guilds, this doesn't involve your members—but it does involve a definable creative community, whose history now yields more employment for the industries you work in than almost any other pool of creative work, save the public domain realms of Austen, Doyle, Stoker, etc.

(2) takes a leap of imagination, too, that I frankly don't see even a spark of at present. The baying and bickering on online articles and essays about creator rights reveal a cesspool of animosity, resentment, drones asserting drone capitulation to corporate will, etc. directed at any creative individual who dares to—well, not so much "stand up for their rights," as "dare to interfere with the ceaseless flow of entertainment." The masses want their corporate parables without the messy intrusion of real-life battles against insurmountable odds for "justice" or what's "right."

There is a third or fourth possibility—say, international boycotts of such corporate product until source creators and/or their heirs are given crumbs; or, perhaps, a creator torching themselves at a national premiere of the next movie based on their creations, setting off an "Arab spring" and prompting questions at last about all this. But both of those seem even less likely than (1) or (2), and I'm not ever an advocate of self-immolation.

Ultimately, given our national identity as a consumer nation addicted to human slavery for everything from our Walmart shoes to our Apple computers, what we're seeing, I fear, is the national embracing of creative imaginations being codified as another form of slave labor, too. It's tough to interpret the bile and vitriol coming from the so-called "fan" community as anything other than that.

Me, I'm not even curious any longer about seeing these Marvel movies, and I'll never spend another penny on Marvel product or Marvel-derivative product of any kind. Marvel/Disney has made it completely clear where they stand on sharing even morsels of the billions they rake in, so I'll withhold my micromorsels from their coffers. It's a meaningless decision, I'm sure, in the grand scheme of things, but it's a start.

Fair and legal are two separate things. Like many of us creators, Gary had to know that, unless you have a contract that says differently, the company you create a new character for owns that character and can do what they want with it and not have to pay you a cent. Guys like Siegel & Shuster, Jack Kirby and even Stan Lee found that out.

That's the legal.

The fair, in my opinion, would be to acknowledge his contribution and do something nice for the guy who made it all possible, rather than spend twenty times the amount on lawyers to hound him to hell.

That ain't gonna happen in this lifetime, because, despite what the government would have you believe, corporations are not people. They don't have any obligation to be benevolent. They do have an obligation to their stockholders to make money and part of that includes defending their copyright and trademark in court. They can't afford to simply look the other way, because they have to be concerned about precedent (look at Disney's case against THE AIR PIRATES). They don't have to give a single thing that is not covered in an enforceable contract.

At Marvel all you need to do is endorse your check and you've legally turned over all rights to them. Anyone who works in comics under a work for hire agreement knows that any rewards they receive are at the whim of the company who owns the property. The company can grant or deny you further funds at their discretion. Marvel certainly could have cut a check for Gary based off of the Ghost Rider movies. It's undeniable that he created the property (along with Mike Ploog). Marvel has given money to other creators when their material was used in other media. There's certainly enough money to go around after two movies and tons of merchandising. There's what's strictly legal and what's right. Marvel is way wrong in this case. But, sadly, Gary's in a large club of creators who are victims of very bad deals.

Alex Ness here again. Thank you to Stephen, Mike and Chuck. They know the industry, they’ve worked in it and are still working, for a combined total of over 90 years.

For my part I know there are contracts signed. But in the advent of new technology and new avenues of revenue, the publishers and owners of the characters should well consider the cost of fighting challenges versus that of paying a fee, perhaps not huge, but something to say we appreciate how you enhanced this corporation.

I am boycotting Marvel and all ancillary companies. My money is not a big deal, but I can’t, in good conscience support the exploitation of creative talents. The reward reaped by Marvel versus that of Gary Friedrich is obscene.

UPDATED TO ADD ERIK LARSEN AND STEVEN GRANT COMMENTS:

On the face of it--it looks really shitty.

But I have no idea.

I wasn't there when the character was created and I don't know what Gary's contribution was. There are others claiming Gary was not involved with the character's creation. If that was the case--would it be right for him to sue Marvel and cost them a ton of money defending themselves?

On the other hand--who would claim to have co-created a character they didn't create?

I don't know the case--I don't know the creators but on the surface--it does look bad--it's Marvel beating up the little guy.

Regardless of who is in the right--it just seems very wrong for them to ask for money from him.

And this from Steven Grant

From a legal standpoint, yes, Gary is probably being treated fairly. It's not unusual in civil suits for a plaintiff who loses to be ordered to pay some or all of the defendant's legal fees. Trademark/copyright law pre-1977 is so murky it's hard to tell where the ownership stands on properties & whether Gary does have any rights to the Ghost Rider character. Certainly it's murky enough there was no reason for Gary to assume he didn't. Clearly the judge didn't see it that way.

However, Gary's right that it's chump change to a company that recently sold for, what was it?, $4 billion? That suggests the main point of the fine is punitive, not only to punish Gary for attempting to stake a claim in his own creation but as a message to the rest of the creative community not to challenge Marvel's ownership of properties or suffer what would likely be for them serious consequences, given how much they were paid in the first place. Unless there's some point of law allowing for an appeal, Marvel won the case; there's no point to them pressing this except to show a pretty ugly face to the creative community. In essence, they're demanding Gary pay back everything they ever paid him for his Ghost Rider work. The right move for Marvel now would be to waive the fine and let bygones be bygones. For his creation of the character alone, Gary deserves better from them.UPDATED AGAIN

Steve Bissette posted this on Facebook ALERT, ALL COMICS CREATORS [Reposting, for a necessary (requested) edit; reposting all comments, too, after this main post. Apologies.]: With permission, I'm quoting key points my dear friend and own legal advisor/contract consultant (since 1992) Jean-Marc Lofficier raised on his posts to a Yahoo forum discussing Ty Templeton's cartoon concerning the Gary Friedrich v Marvel judgment. Jean-Marc succinctly notes WHY this judgment has changed EVERYTHING for anyone who has worked for Marvel, or what this judgment changes (probably irrevocably) about the landscape for all concerned:

"...with all due respect to Ty, he's talking (drawing?) out of his ass.

So to clarify again, here is what I thought is important to remember here:

1) This is the first time Marvel is using convention sales of copyrighted Marvel characters as a "weapon". They are of course perfectly entitled to do so, legally speaking. But it does mean that, from now on, all of you here who draw sketches of Marvel characters for money at conventions or sell sketchbooks containing pictures of Marvel characters are on notice that you might be sued (usually for triple the amount you made) should Marvel decide to go after you.

My legal advice to you guys is simple: STOP and destroy all sketchbooks for sale with copyrighted materials in it. I'm serious. You've just been put on notice by this case.

[Note: In a followup comment to a question on the matter of selling sketches/sketchbooks at conventions featuring Marvel characters, Jean-Marc added:]

If Disney and/or Marvel have a policy to deal with that sort of business, I would encourage anyone planning to sell sketches, etc. to contact them and obtain a waiver or a permission of some kind under that program.

--- [name withdrawn] is incorrect about one thing: Disney, if not Marvel, does have a full office staffed with para legals of young lawyers whose only job is to look for copyright/tm infringements and send C&D (cease & desist) letters. I have seen them. They don't do it for the money or to be a pain the the ass, they do it based on the legal theory that if you don't actively protect your (c)/tm, you run the risk of it being used against you as an affirmative defense in an infringement case.

Based on the GHOST RIDER case, it is, in my opinion, only a matter of time until Disney, now aware of the issue, sends one of their young attorneys with a stash of blank C&D letters at conventions and start handing them out to everyone selling Marvel sketches without authorization.

Receiving that letter will oblige you to hire a lawyer and even if Disney lets you off the hook (which they probably will), you might be out of a couple of grands by the time the process is over -- or you run the risk of being stuck with a $15K bill if you fight them.

Again, I emphasize: this is sound business practice for Disney; NOT doing it entails risks far greater than doing it. They have gone after children's nurseries before which had Mickey painted on their walls for the same exact legal reason. And that was far more time consuming and bad PR-wise that going after some comic book guys at artist's alleys.

It is only a matter of time.

So if they have a waiver/permission program as Ivan says, join it; if not, stop.

[Back to Jean-Marc's original, full post:]

2) Although there never was any serious dispute that Marvel owned whatever share of GR Gary Friedrich was claiming (personally, I'm not a mind reader but I think Friedrich was hoping for some kind of settlement), there remains two legal issues that Ty obviously didn't grasp:

2.1) When Moebius drew his SILVER SURFER with Stan Lee, he got royalties and he was still getting them when Starwatcher split in 2000. You will note that modern-day WFH agreements spell out that the money you're getting will be the sole compensation you will ever receive and you're not entitled to anything else. It is spelled out because if it is not, courts are at liberty to interpret the contract and decide whether or not you should be gettong something extra.

The back-of-the-check contract signed by Gary did transfer ownership of GR to Marvel, and the amount of that check was the consideration for publishing rights, but nowhere did it actually state (as it does today) that it was the ONLY consideration to which Gary might be entitled in the event of a film or a TV series. The Court could have easily decided that on the absence of that clause, Gary was owed something.

2.2.) There is a famous case about singer Peggy Lee who won her suit against Disney for their reuse of her songs in LADY & THE TRAMP on video, because that medium didn't exist when she signed her original agreement with the Mouse, and contracts at that time didn't specify the now standard "and other media to be invented in the future". The Court chose to interpret that lack of specificity in favor of Peggy Lee. When Marvel sold the rights to GR to the studio which produced it, they likely sold the video, DVD and game rights. These media did not exist when Friedrich signed his back of the check contract which did not list any and all future media. Therefore, based on the Peggy Lee case, the Court could have found that Marvel didn't own those rights, and therefore couldn't resell them, or, as in the Peggy Lee case, simply that they owe the plaintiff some kind of percentage, that's all.

So it remains my contention that Marvel owes "something" to Friedrich (and Ploog as well) based not on the publishing, but purely on the disposition of the multimedia rights to GR. That the Judge decided otherwise is a tough break for creators, and unjust.

3) Which brings me to my next point, which is that documentary standards are being unfairly applied throughout the judicial system, and somehow mistakes always seem to favor the corporations, not the small guy. The enforceability of a contract depends on accurate documentation which must be produced in Court. If you have a mortgage, but the bank cannot produce your properly signed promissory note, then the court has the possibility of nullifying your mortgage. It's happened in a few rare cases, but more often than not, people have been thrown out of their homes despite banks being unable to produce a properly signed note.

In this case, has any of you seen the back of the check signed by Friedrich?Was that check properly endorsed? Was there anything crossed out? Why should mistakes in documentation automatically benefit the corporations, and the little guy should be held to standards of evidence that the companies themselves don't respect? Why did the Judge assume that the paperwork was in order & automatically benefited Marvel? What I'm saying is, if people can lose their homes despite proper paperwork, well, then, Marvel could lose GR despite its paperwork. It's up to the Court.

So whether or not you feel any sympathy for Gary and his cause, this is another loss for the Little Guy which, in the greater scheme of things, impacts all of us."

SPREAD THE WORD. SPREAD THIS LINK.

And QUIT doing, creating, selling ANY sketches or sketchbooks or prints featuring Marvel/Disney characters, IMMEDIATELY. And let fans know WHY you are no longer doing them, and/or CANNOT do them ever again.

As was the case with the SOPA legislation, what we have here is corporate powers being given a blank check against the little guys.

This has nothing to do with copyright protection, and everything to do with the big guys destroying the ability of the little guys to do their thing independently of the big guys.

The big guys know (correctly) that such laws will never impact them. If the New York Times uses a picture of Spider-Man and says it's fair use, it will be fair use. If Gary Friedrich, or Jerry Ordway, or Mike Manley, do the same thing and happen to piss off Marvel that week, even though they'll say it's fair use, it will be deemed a copyright violation.

If the powers that be go after you, there won't be much you can do realistically. Obviously, no one's going to go after the New York Times.

For all the talk about what Gary Friedrich agreed to by endorsing a check in the 1970s, the Courts still have chosen to interpret it (because interpretation was required) in a fashion that is HUGELY favorable to Marvel. On the other side, other courts have chosen to let companies get away with outright thievery despite ironclad documentation in the matter of the foreclosure crisis. There, paperwork doesn't seem to matter as much. Your note wasn't properly assigned to the bank? Doesn't matter. Wink, wink, you can still foreclose! Throw the bums out, paperwork be damned!

The only thing the judge had to say in this case was, "well, yes, Mr Friedrich granted you, Marvel, all rights, but nowhere does it say in that tiny weeny agreement that he's not entitled to some kind of contingent compensation when you license a film since this is clearly beyond the scope of the original contract. Work it out between the two of you." That's all.

To some extent it's always been that way, but the bulldozer has been revving up a lot lately, and we're all under it.

Grell says, "Like many of us creators, Gary had to know that, unless you have a contract that says differently, the company you create a new character for owns that character and can do what they want with it and not have to pay you a cent."

That's not actually true anymore -- the courts have upheld the back-of-the-check contract Bissette signed in '72, but as Bissette notes, the Copyright Act of 1976 changed things.

The law now is that unless you have a work-for-hire contract, in advance, the work is not for-hire. Take a look at Gaiman's recently-settled litigation against McFarlane -- McFarlane thought that, since Gaiman was playing in his sandbox and (co-)creating derivative Spawn characters for the Spawn universe, he (McFarlane) would own them entirely. He was wrong. Absent a work-for-hire contract, Gaiman co-owns the characters he created.

Of course, in practical terms, that just means Marvel's gotten better at paperwork and makes everyone sign WFH agreements upfront now. But it's an important distinction. I wish people would stop saying "It's work-for-hire unless your contract says otherwise"; the truth is that, post-1978, it's NOT work-for-hire unless your contract says it IS!

I'm at my wits end over this issue after fuming and ranting the past couple of days since the story broke.

On the one hand I'm all-in for 100% boycott of everything Marvel/Disney, including movies, merchandise, etc.

Of course it's only going to have a chance of having an impact if the millions of consumers who buy the products do the same.

At the same time, though, more specifically regarding comics... If a boycott were to be successful in terms of Marvel seeing it's sales numbers plummet, I'm not so sure that, given the type of corporate mindset they obviously have, that they would care ( I'm speaking of the number crunchers, attorneys, etc... not the Joe Quesadas and other creators involved in the day to day of publishing ).. They would, I believe, simply look at the numbers and decide to close shop, putting Marvel on the market for the highest bidder. The net result, or the one I care about the most, however, is how many writers, editors, pencilers, inkers, colorists, letterers and so on would suddenly find themselves out in the cold without any work?.... I don't want to be a party to causing something like that.

But this issue has been a long simmering one on the back burner of the industry for a long time, with various publishers slicing and dicing creators in court from time to time and tossing their parts into the foul smelling stew they're cooking....

This recent issue has, for whatever reasons ( in my opinion, it's much to do with the disparity between the parties and how Marvel's conduct is night and day to how it tries to market itself ), thrown gasoline on the issue and enflamed the fan base.

It's terrible that a creator is part of the fuel for the fire... but I'm hoping that this issue won't just fade into obscurity and back page also ran news bits about Gary Friedrich.... I'm hoping that the creative community, the fan base, the news sites and others will keep this issue hot and in the public's mind until Marvel at the very least publicly makes good things by Mr. Friedrich and acknowledges they were "wrong" to pursue the additional $17k... I don't mean legally wrong.. The illicit court has handed down it's nonsensical decision and that won't be changed. Marvel, on the other hand, can show that it does care about the very fiber of creativity that gave birth to, and perpetuates, the comic book industry... the creators.... and begin to treat them honestly and respectfully... beginning with Gary Friedrich.

The House of Mouse is smelling more and more like it's full of rats.....